Friday, 27 February 2015

Post-1994 land laws mimic apartheid

“Umhlaba! Izwe lethu! (Land! This land is ours!)” It is now
more than 40 years since I first heard these slogans. Given the passion with
which they were declared, I have tried to understand exactly what they meant.

Like many South Africans, I continue to grapple with the
multiple meanings of the land question. For me, it is important to understand
land dispossession as a structural process that played out over many centuries.

Much has been written about the Natives Land Act of 1913, the
law that took the land away from African people with the stroke of the pen.
Although that Act is an important and brutal turning point in the history of
land dispossession and alienation in South Africa, it was neither the beginning
nor the final act in this process.

The power of the 1913 Act was in redefining Africans’
relationship to the land, which white people had taken in a series of
historical acts of aggression that forced black people into servitude. It is
important to underscore the place, meaning and intention of the 1913 Act in the
continuum of land dispossession and alienation in South Africa.

It is in unpacking these overlapping and at times obscure
facts, laws and practices that we might hope to come to grips with the past
alienation and the current forms of dispossession.

At the core of the issue lies the colonial state and its
close links with the economic project of white accumulation. Land was taken and
placed in private, white hands. The project of state formation was intertwined
with this process to create a colonial authority in Southern Africa.

Unlike in parts of Anglophone West Africa, such as Nigeria,
the colonial project in this region was direct and coexisted with those it had
defeated and from whom land was taken. This alone makes for a complicated,
though not necessarily exceptional, form of dispossession.

To consolidate the colonial state and its authority, an
internal class drawn from among the colonised had to be brought in to oversee
and control the “natives” on behalf of the colonial masters. Thus, it is not
possible to understand land dispossession without interrogating its links to
other forms of disempowerment and dislocation.

Colonialism took over and distorted everything. Everything.
It redefined the customs of those who were dispossessed and subjugated,
interpreting them through the lens of colonial logic, and gave it back to
indigenous people as “official customary law”.

A community was defined as having a traditional leader – a
tribal community whose cultures and practices were homogenised. It sought to
standardise these “tribal” groups to eliminate diversity, complexity and the
textures of African experience.

Though some scholars have written about the standardisation
of customary law, we have yet to wrestle with its effects – especially in
relation to land ownership, relationships among groups with land, marriage
regimes, customary systems and layers of authority and governance.

Although African cultures in Southern Africa are undeniably
patriarchal – something shared with cultures across many continents – there are
nuances at the core of the structure of the family, the location of men and
women within that structure, as well as property ownership and inheritance
issues. Despite many centuries of absorption into the British and Roman-Dutch
legal systems and sensibilities, many people continue to live in ways that
contradict them.

What does this have to do with the land question? A lot,
especially when we consider the concurrent laws and policies that the post-1994
government continues to put in place and the obliteration of the dynamism with
which people have contested colonialism.

The 1913 Act forbade Africans to buy or own land. They were
allowed to occupy land in designated “reserves”, but the law controlled the
tenancy of black people everywhere. The framework and exclusions set out in
1913 were concretised in subsequent laws, in particular the 1936 Native and
Land Trust Act, which broke South Africa into 10 distinct areas that became the
foundations of the Bantustans. Whatever spaces may have existed for Africans to
remain on white-owned land were wiped out in the subsequent forced removals
that erased so-called “black spots” with massive aggression.

In 1994, when the democratic government was inaugurated, the
multiple legacies of these Acts were still in place. Even in areas that were
demarcated as “black homelands”, Africans were not allowed to own land. They
could get “permission to occupy” from the Bantustan leaders who held the land
“in trust” for the African people, but could not have any form of ownership.
Democracy inherited this complex system of dispossession as well as the
colonial institution of traditional leadership, which some had come to believe
was the “real” African culture.

The first attempt to recreate and transform South Africa, and
to reverse major aspects of dispossession and dehumanisation, is set out in the
Constitution. It confirms the right to equality, including the right to own
land anywhere in the country. In section 25, it defines and requires
redistribution, restitution and security of tenure.

The potential and limitations of section 25 have never been
tested in court. Instead, a closer reading of post-1994 lawmaking reveals an
uncomfortable apartheid-era logic.

The Restitution of Land Rights Act of 1994 and the Communal
Property Associations Act of 1996 enabled those whose land had been restored to
hold title to it, but traditional leaders were not happy. Their opposition led
to the adoption of the Traditional Leadership and Governance Framework Act of
2003, which directly echoes some of the most troubling aspects of the 1913 and
1936 Land Acts, especially in its creation of “traditional authorities” and its
reinforcement of the old Bantustan boundaries.

The next step was to give meaning to the Act through a series
of laws, including the Communal Land Rights Act of 2004 and the Traditional
Courts Bill of 2008. These proposals would give extensive powers to traditional
leaders and undermine the rights confirmed by the Constitution. Popular
opposition to the Communal Land Rights Act led to it being struck down in 2010
by the Constitutional Court; fierce opposition to the Traditional Courts Bill
resulted in its defeat in the National Council of Provinces in 2013.
Contestation continues, however, and difficult challenges lie ahead.

South Africa has made little progress in any aspect of
redressing the legacy of dispossession. Despite the billions of rands that have
been spent, there is very little to show for them in terms of real
transformation of the land ownership regime.

I was eight years old when I had my first major argument
about land. Despite my reverence for my uncle, who just had returned from
Robben Island, I could not understand his approach to the land question. His
Pan-Africanist ideology conflicted with what I understood from my parents, who
had taken the Freedom Charter route.

During a heated argument, I went outside and scooped soil
from the garden and, holding it in my palms, I said: “Ufun’umhlaba?
Nank’umhlaba. [You want land? Here it is.]”

From what I remember, I was told something like this: “My
child, one day you will understand. You will understand why we are here, in
these dry plains of Sabalele, when white people live in lush cities, their
gardens kissed by the waves of the sea. You will understand that this [and he
touched my belly button] ties you to your mother and the land.

“We are people of the land. The land is our mother, our home
and place of belonging. When your [umbilical] cord fell, it was buried in the
ground, connecting you to your ancestors and the land. Look at this village. Is
this the life we chose for ourselves? No. One day you will ask these questions
and reject the idea that this is your place in life.”

Today’s questions are as complex as ever. Umhlaba (land)
remains a difficult issue partly because it intersects with the economy,
history, identity and so much more.

South Africa’s land question is not going away anytime soon.
New alliances – between mining companies, traditional leaders and government
departments – will emerge. We need to recover the rights-based approach to land
enshrined in the Constitution. Compromises and accommodations may be necessary,
but to expect the dispossessed to make more sacrifices is not only unjust, it
is also a betrayal of the very struggle many fought, died and live for.

Frantz Fanon

1925 - 1961

This Blog

This blog contains resources directly related to Frantz Fanon's life and work, the secondary literature on Fanon and other resources useful for engaging Fanon's ideas here and now. Some of what is here comes from, or relates to, a particular set of ongoing discussions around Fanon's work in Grahamstown.